Citation NR: 9700308
Decision Date: 01/08/97 Archive Date: 02/03/97
DOCKET NO. 95-00 508 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington
THE ISSUES
1. Whether the veteran filed a timely substantive appeal
with the rating action of March 22, 1993, denying increased
ratings for residuals of fracture of the left fibula and
prostatitis.
2. Entitlement to service connection for a low back disorder
and right hip disorder as secondary to a service-connected
left ankle disorder.
3. Entitlement to service connection for a left foot
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and son
ATTORNEY FOR THE BOARD
E. J. McCafferty, Counsel
INTRODUCTION
The veteran had active service from February 1946 to January
1949.
The issue of entitlement to service connection for a left
foot disorder is the subject of a remand section at the end
of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in effect, that a
hearing conducted in November 1993, should be considered a
substantive appeal and if so considered then the veteran's
substantive appeal would have been timely filed. It is also
contended that the veteran has developed a right hip disorder
and low back disorder as a result of his service-connected
left ankle disability. It is argued that the veteran has
been forced to shift his weight to his right side and that
over the years this caused problems in his low back and right
hip.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran did not perfect an appeal from
the denial of his claim for increased ratings for residuals
of fracture of the left fibula and prostatitis by rating
action in March 1993. It is the further decision of the
Board that the veteran has not presented evidence sufficient
to justify a belief by a fair and impartial individual that
his claims for service connection for a right hip disorder
and low back disorder as secondary to his service-connected
left ankle disorder are well grounded.
FINDINGS OF FACT
1. A substantive appeal or response to the statement of the
case mailed to the veteran in March 1995 was not filed within
60 days from the date of mailing of the statement of the case
or within one year of the March 1993 notice to the veteran of
the denial of his claims for increased ratings for residuals
of fracture of the left fibula and prostatitis.
2. The veteran has submitted no competent medical evidence
relating his right hip disorder and low back disorder to his
service-connected residuals of fracture of the left fibula.
CONCLUSIONS OF LAW
1. The veteran did not file a timely substantive appeal or
response to the statement of the case of March 1995.
38 U.S.C.A. § 7108 (West 1991 & Supp. 1996); 38 C.F.R.
§§ 20.202, 20.302 (1995).
2. The veteran has not submitted evidence of well-grounded
claims for secondary service connection for a right hip
disorder and low back disorder. 38 U.S.C.A. § 5107 (West
1991 & Supp. 1996); 38 C.F.R. § 3.310(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Timeliness.
The pertinent procedural history of this case may be briefly
summarized. In March 1993, a rating decision denied
increased ratings for residuals of fracture left fibula,
rated as 30 percent disabling and prostatitis, rated
10 percent disabling. The veteran was advised of this
adverse determination by VA letter in March 1993. In August
1993, the veteran disagreed with that determination and
requested a hearing on appeal. A hearing on appeal with
respect to the denied issues was held in November 1993.
Subsequently, additional medical evidence was considered and
a VA examination was scheduled and conducted.
In June 1994, the hearing officer confirmed the prior denial
and the veteran was furnished a statement of the case in July
1994. Accompanying the statement of the case was
correspondence from the VA advising the veteran not to delay
filing the enclosed "substantive appeal." The veteran was
further advised that if he was not heard from in 60 days,
then the RO would assume that he did not intend to complete
his appeal. The veteran filed his substantive appeal in
December 1994 and thus did not timely respond to the
statement of the case furnished in July 1994.
An appeal consists of a timely notice of disagreement in
writing and, after a statement of the case has been
furnished, a timely substantive appeal. 38 U.S.C.A.
§ 7105(d)(3) (West 1991 & Supp. 1996); 38 C.F.R. § 20.200
(1995).
In this case the veteran was furnished a statement of the
case and the veteran had 60 days in which to file his
substantive appeal with respect to the denied issues.
38 C.F.R. §§ 20.202, 20.302. A substantive appeal must be
filed within 60 days from the date that agency of original
jurisdiction (RO) mails the statement of the case to the
appellant, or within the remainder of the one-year period
from the date of mailing of the notification of the
determination being appealed, whichever period ends later.
38 C.F.R. § 20.302 (1995).
While the veteran and his representative argue that the
hearing in November 1993 constituted a substantive appeal,
the Board notes that a statement of the case on the increased
rating issues had not been furnished at that time. It was
not until July 1994, following further development, that a
statement of the case was issued to the veteran. Under the
above-cited regulatory criteria, the veteran had 60 days in
which to file his substantive appeal following the mailing of
the statement of the case. It is neither contended, nor
shown that the veteran responded in a timely manner to the
July 1994 correspondence. While we have considered the
arguments advanced and the veteran’s testimony, the record
does not show that the veteran or his representative filed a
timely substantive appeal or response to the statement of the
case within the 60-day period. The Board notes that a
veteran may request an extension of the 60-day period for
responding to the statement of the case for good cause. The
request for such an extension should be in writing and must
be made prior to the expiration of the time limit for filing
the response to the supplemental statement of the case.
38 C.F.R. §§ 20.202, 20.303 (1995). Review of the claims
file discloses no evidence or contention that the veteran
requested such an extension in order to respond to the July
1994 statement of the case.
If there is a failure to comply with the law or regulations,
it is incumbent upon the Board to reject the application for
review on appeal. 38 U.S.C.A. §§ 7105, 7107 (West 1991 &
Supp. 1996). Rowell v. Principi, 4 Vet.App. 9 (1993); Roy v.
Brown, 5 Vet.App. 554 (1993). Jurisdiction does indeed
matter and is not "harmless" when the VA during the claims
adjudication process fails to consider threshold
jurisdictional issues. In the case currently before the
Board, it is clearly demonstrated that the veteran did not
file a timely substantive appeal. Thus, the Board is
dismissing the claim because said claim is not properly
before the Board on appeal.
Secondary Service Connection.
It is neither contended, nor shown that the veteran's claimed
disabilities had their onset in service. In fact, service
medical records are negative for any complaint or treatment
for a low back or right hip condition during service.
Rather, the veteran's principal argument is that he has
developed low back and right hip disorders as a result of
service-connected disability.
In this regard, the Board notes that the veteran's statements
are not supported by any recorded clinical data or medical
opinion. The veteran's son testified in the veteran's behalf
at the hearing on appeal describing his father’s tendency to
place his weight on his right side due to his service-
connected disability. While the veteran's son is reportedly
a registered nurse, his general comments with respect to the
veteran's physical status do not provide the needed medical
nexus between the service-connected disabilities and the
claimed disabilities. Further, the veteran and his
representative, as layman, lack the expertise to relate the
claimed conditions to his service-connected ankle injury.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
In order to assist the veteran in the development of his
claim, a VA physician was asked for an opinion as to the
relationship, if any, between the veteran's service-connected
left ankle injury and his low back and right hip disorders.
Following a review of the record and an examination in
January 1996, the examiner opined that on a more probable
than not basis, the veteran's low back and "left" hip
symptoms are not related to the fracture of the left fibula.
On review of the examination, the Board notes that the
reported findings dealt with the right hip, but then,
apparently due to clerical error, the "left" hip was
mentioned in the opinion. It is clear from the context, that
the examiner was referring to the right hip in his opinion.
Service connection may be granted for a claimed disability
when the facts, shown by evidence, demonstrate that a disease
or injury resulting in current disability was incurred during
active service or, if preexisting active service, is
aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service
connection may also be granted when a disability is
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310 (1995).
While we have considered the testimony of the veteran and his
son, the present record contains a medical opinion from a VA
examining physician which is contradictory to the position
taken by the veteran and his son. Thus, there is no
competent medical evidence to establish the causal
relationship claimed by the veteran, while there is medical
evidence to the contrary. Also, the physician's opinion that
there is no relationship between the service-connected
disabilities and the claimed disabilities, effectively
removes this case from the purview of Allen v.
Brown, 7 Vet.App. 439 (1995), in that there is no competent
medical evidence suggesting that the service-connected left
ankle disability in any way aggravated the claimed condition.
Thus, service connection on a secondary basis is not
warranted.
ORDER
The veteran did not timely appeal the March 1993 rating
action denying increased ratings for residuals of left fibula
fracture and prostatitis and the appeal as to these issues is
dismissed. Service connection for a low back disorder and
right hip disorder is denied.
REMAND
As noted above, the veteran sought service connection for a
left foot disorder and in that regard argued that his foot
was injured at the same time he sustained his service-
connected ankle injury. He also argued that the foot problem
developed as a result of his left ankle disability. In this
regard, we note that at the time the RO requested a VA
examination and opinion with respect to the veteran's claims
for secondary service connection, the left foot was included
in the request. However, the examiner failed to address this
question, and this question needs to be addressed by
competent medical authority prior to further appellate
review. Accordingly, the case is being REMANDED for the
following action:
The RO should request that the examiner
who performed the January 1996
examination review the veteran's claims
folder in order to render an opinion as
to whether it is more likely than not
that the veteran's left foot
disabilities, if any, are related to his
service-connected left ankle disability.
If further examination is required in
order for the examiner to render such
opinion or if such is needed by a new
examiner, then such examination should be
conducted. The claims folder should be
made available to the examiner for
consideration in determining if an
examination is needed and in rendering an
opinion.
When the above action has been completed, the RO should
review the case. If it remains denied, the veteran and his
representative should be furnished a supplemental statement
of the case and given an adequate opportunity to respond
thereto. The case should be returned to the Board for
further appellate review, if in order. The sole purpose of
this REMAND is to obtain clarifying data.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1995).
- 2 -